Monday, January 31, 2005

This was one of my favorite pictures so far about the Iraqi elections...I wonder if people here will color their fingertips as a show of celebration...or if Iraqis will do this as part of their annual voting ritual. It's definitely cooler than "I voted!" stickers.

(the photo points to Dakotapundit)

(And click herefor my earlier post about the Iraqi elections) Random memory association: I went to a high school where it was actually fashionable ("cool") to show up in school with ashes on your forehead on a certain day at the beginning of Lent - a lot of symbolic value (history, faith, community, and the fact that a few students has gotten up early to go to church before school). I'm no longer part of an ash-distributing church (for unrelated reasons, of course!), but the ashes were definitely "cooler" (had more powerful and multilayered symbolic value) than little red-white-and-blue stickers... these stained fingertips remind me of the ashes a little bit (in the good sense). They just tell a whole story, really capturing a significant moment in history.

Click on the post title for the link to the Jan 27 Economist. Many of my readers are friends who share my voluntary connection to Brazil, and might find this interesting.... it also has some interesting history about the growth of the city in this century, and how various public policies ahve affected the conditions there. I pulled an excerpt from the article I thought would be interesting for my federalist law students....

"Brazil's federal system does not provide for metropolitan
government. For example, while the municipality manages the city's bus network,
the state runs its trains, the metro and inter-city buses. The system links the
city to satellite municipalities, but moving between these is a nightmare. This
cuts people off from potential jobs. Likewise in health: federal funding goes
straight to municipalities in accordance with their populations, but services
are not co-ordinated."

A farmer spraying his rapeseed field in Germany with pesticides. Growers of rapeseed, one of the primary sources of cooking oil, have discovered their crop has a new calling at petrol stations. Heated to a high temperature, it becomes a biological form of diesel that emits only a fraction of the carbon dioxide.
(AFP/DPA/File/Peter Foerster)

This is an interesting article about corporate executives being personally liable for wrongdoing by their corporations. It's an interesting development in our law; corporate liability was a necessary development to shield or protect investors, who before that were discouraged from investing in useful business activities because owners were held personally liable for its liabilities (mostly torts and contracts, back then). But the protection of owners from liability beyond their actual investment seems to create higher agency costs with wayward managers. When I was at the Attorney General's Office (in CT, before this position), one of the cutting-edge areas of environmental enforcement was "responsible officer/manager" liability. The corporations themselves often operate through a series of "shell" or holding companies, and the managers (often entrenched because of their holdings of corporate shares) had little incentive to avoid dumping and other environmental wrongdoing - but this trend addresses that.

This is a shame. I had a friend in college who had something similar happen to him; decent student, good grades, but they tried to keep him from graduating during his last year because a few powerful professors there disagreed with something he said in a philosophy paper.

I cannot find any news articles where LeMoyne College responds to the accusation - if anyone does, please post it in the comments.

Click on the title to read the article (about unemployment benefits in Germany being denied to woman because there were jobs available at the local brothel). I worked as a Legal Aid lawyer for three years and spent most of my time doing Social Security Disability cases. There were many hearings where the Social Security Administration was denying benefits to someone with no job skills and some physical maladies because "they could work as a dial marker or a potato chip counter." (No kidding - these are real entries in the Dictionary of Occupation Titles, and favorites for disability examiners, who seem to think there are thousands of such positions open in every city).

I've heard and read many arguments for and against legalized prostitution (personally, apart from moral concerns, I think prostitution in general exploits female illegal immigrants), but I hadn't considered the possibility that it would mean adding the "world's oldest profession" to the Dictionary of Occupational Titles, which would mean Social Security Disability claimants would have the burden of proving they were physically unable to perform this job. Ugh.

Readers who share my intense Puritanical dislike of prostitution can click hereto get rankled by the Economist's coverage of a new prostitution resort planned in Nevada with a museum and gift shop. From the story: "George Flint, head of the Nevada Brothel Association, insists that a trip to the Mustang Ranch could be 'just as important as driving to Mount Rushmore'.” I guess I haven't done that yet, either.

Sunday, January 30, 2005

I'm neither a Bush-Worshipper nor a Bush-Hater, but folks, 76% voter turnout is not a sham election. I don't care what the people at Daily Kosand Talk Left may say. Kerry has already been on the news insisting that we "don't overhype" this. I hope people here will paint their fingertips blue tomorrow as a show of support and celebration for the people who had their first real election in a generation (and one of the first Arab elections where women could vote anywhere).

I don't mind Democrats holding the administration accountable for any real acts of wrongdoing, but they undermine their credibility when they call a good thing "bad" just because it looks good for Bush. This was a better turnout than most industrialized democracies usuall have in their elections - and the Iraqis voted in spite of death threats from insurgents.

It's really petty for critics to naysay the election because of the intense security offered by U.S. troops for the event. If we hadn't done this, and there was a bloodbath or a low turnout, the same people would have lambasted the administration for forcing an election and not making the country secure. Kerry opined that Iraq is less safe today than it was while Saddam was in power. He's being contradictory - first, the election is not truly legitimate for him because we made the country so secure, and then he criticizes the Administration for not making it secure enough. I don't get it. The Bush-bashers seem genuinely disappointed that the vote went well, that no bloodbath occurred, and that the turnout was really tremendous. Sorry to let you down, guys.

I know voter turnout was low in some Sunni neighborhoods - either because the people were more afraid of insurgents there, or because they resent the idea of democracy. It's sort of like the MTV audience in America - don't vote, don't matter. Every democracy has pockets or groups that choose to marginalize themselves by not participating or voting.

Friday, January 28, 2005

This week I read two books (one was short), and recommend them both. Thomas Friedman's Longitudes and Attitudes is very informative, insightful, and reflective about Middle East politics, globalism, and American foreign policy. He is a regular columnist for the New York Times, travels frequently around the Middle East, and has interesting things to say. His liberal vantagepoint comes through (which I don't mind, except when he briefly discusses religion and tries to tell me how various religions should modify their belief systems to be more ecumenical, a clear sign that he still doesn't "get" the possibility that some reasonable people could still believe in divine revelation), but the book was finished before we invaded Iraq - and it is really interesting to hear how a prominent liberal was talking back in 2002 about what we should be doing there. Open-minded conservatives may feel vindicated when they read it (close-minded people usually already feel vindicated, I've found), but there is still plenty of material to challenge anyone to rethink some of their ideas. I really found it thought-provoking.

The book(let) I was really excited about, though, is The Cognitive Style of Power Point by Edward R. Tufte. He articulates many things I've been feeling intuitively for some time, but for which I could not find the right words (actually, I simply don't possess his expertise in cognitive theory and design, so I could offer nothing more than amateur hunches). I think I may never use Power Point again. He has a convincing argument (I thought it was, anyway) that Power Point purges 80% of the important content in a presentation, and bores the intelligent people in the audience, just so speakers feel less jittery because they have a colorful outline to read from during their talk: "The short-run convenience for the presenter comes at an enormous cost to the content and to the audience." The real treasure of Tufte's book, though, is not his sound bites, but the intense graphical examples he uses, dissecting classic slide presentations from meetings at NASA, sales conventions, etc., and explaining how they distort the information and generate shallow group-think. He has me worried about students who like it. You can get an idea of Tufte's arguments by visiting his website, www.edwardtufte.com.
"Power Point allows speakers to pretend they are giving a talk, and audiences to pretend they are listening." :-)

Tort Reform Advocates are happy with the new legislation introduced in Congress to impose sanctions on lawyers for filing frivolous lawsuits. I generally disagree strongly with the tort reform folks (my most recent post discusses Judge Posner's comments, click here), but from what I've read, this proposed bill is more moderate - it mostly limits attenuated forum selection (which is fine, I think - although it inconveniences plaintiffs who live near a big facility (read employer) of the defendant, and perhaps they should create a small exception for that case (except that voir dire allows the lawyers to nix jurors with family members who work for either party). And many states already have provisions for sanctions in cases of vexatious litigation. I'd rather see these types of limitations than "caps" on damages, which I view as unfortunate regulatory interference in a market, akin to rent control.

Pro-Life groups are heralding one of their first litigation victories, a settlement obtained from an abortion clinic to a patient whom they failed to inform about the increased risks of breast cancer posed by abortions during the teenage years. For a few other (biased) reports besides the Washington Times link in the title, click here and here. Activists on both sides of the abortion debate are likely to react strongly to this, so here is my attempt to put the facts about this case in perspective…

1) This was a settlement, not a jury verdict (the World Net Daily article blurs the distinction). The fact that the judge signed the settlement as an order doesn’t mean the judge thought the plaintiffs should win; judges always sign judgments to settle cases so they can be cleared off the trial docket, except where the settlement involves a promise from the plaintiff to withdraw the case completely. The latter is less likely where the defendant appears to be headed to bankruptcy court, meaning the settlement will be difficult to collect if it is a mere private agreement and not an order entered by a court.

2) The plaintiff’s case is based mostly on a scientific study published in the mid-1990’s indicating that abortion raised the risk of breast cancer in women – 150 times higher for girls under 18, and much more for those with a family history of breast cancer. Unsurprisingly, the study itself remains very controversial, being hotly contested by pro-choice groups. Its authors, however, were doctors at a Seattle Cancer Center (i.e., not just pro-life activists), and was published in the Journal of the National Cancer Institute. I’m not attempting to vouch for the accuracy of the study, just its basic legitimacy as genuine scientific inquiry – it’s not pro-life propaganda, but it should still be subject to scientific scrutiny, like any other medical research. Let the medical establishment do further research, I say, as long as neither political side gets to silence the conclusions.

3) The girl was 15 when she had her abortion, stated on her clinic paperwork that her mother, grandmother, and an aunt had all suffered from breast cancer, and still the folks at the clinic told her nothing about a possible heightened risk of cancer for her. This seems odd given that doctors now are so afraid of malpractice liability that they normally are quick to disclose even possible risks. Each time my wife had a baby, her doctors would tell her about one or two new articles in medical journals indicating a possible connection with this or that and various ailments for the mother or child, even when the study was still new or controversial. I’m surprised the clinic wouldn’t have bothered with some simple disclosures like that. The girl did not acutally get cancer, but she is very worried about it. (which means they may have had trouble proving damages if they'd gone through a trial).

4) The abortion clinic in this case actually went out of business last year (with a reported $150,000 in unpaid bills), and their lawyer says the decision to settle was made by the insurance company to avoid the costs of going through a full trial, which they maintain they would have won. I believe them; I don’t know who would have won. But the case really settled because there’s no more money coming in to pay their lawyer to go ahead with a trial, to hire experts to contest the cancer report, etc. – not because of the merits.

5) All that being said, law students shouldn’t discount the value of litigation as a policy advocacy tool (for better or wrose). Civil litigation (not government regulation) removed Joe Camel billboards from the area surrounding the junior high schools. For all the flack about the McDonald’s “fat” case (partially revived this week by the Second Circuit), as soon as the first suit was dismissed McDonald’s introduced a new line of GREAT salads (much improved from their plastic cup of white iceberg lettuce they used to hand you) and alternative Happy Meals with fresh fruit, etc. Only one case against an airline over deep vein thrombosis has settled so far (from what I’ve read) out of the thousand or more that have been filed, but all the airlines have started giving warnings to passengers on overseas flights about the risks of DVT and the need to move around or do certain exercises during the flight. I like the new McDonald’s salads (and have no choice about eating there, because I have young children), and I’m hoping that the airlines will think twice about shrinking the economy class seats any more than they already have in light of the potential DVT liability (I’m 6’4” and really notice the ever-smaller seats in economy class). I’m sure the companies felt like victims, but I think the world is a better place because of these lawsuits –many of us have already benefited (yeah, I know McDonald’s has to pass their litigation costs through to their shareholders or customers, but that’s a pretty thin spread when you serve “billions and billions”). More recently, lawsuits have started to pop up around the country against alcohol manufacturers for marketing their products to irresponsible youth and contributing to drunk driving accidents. The courtroom provides a different set of incentives for people than picket lines and protests. If the (still controversial) cancer study about abortion turns out to be corroborated by other scientific research, I think patients should get to hear due warnings. A wave of litigation could follow if they don’t.

I like private litigation as a tool for social change (better than old-fashioned civil rights litigation, in fact). The common law tort system has built-in elements that are more free-market based and democratic, in some ways, than command-and-control regulation by unelected "experts" at an administrative agency. The tort system allows more room to consider any exceptional equities involved with particular parties, more room for private insurance markets to step in and offer financial incentives to reduce the risks of harm, and a financial incentive (plaintiff's contingency fees) to screen out the ridiculous. This is why I've argued for gun maker liability - I'd rather private litigation than escalated government regulation, which is often the only alternative. If it goes too far, the jury can say, "Nay." The private companies can decide for themselves how to manage their risks - whether by reduction, spreading, or viewing it as a straight business cost.

The other thing I like about civil-litigation-as-policymaking: the advocates have to engage in a lot of sharp, analytical thinking every step of the way, whereas the usual political route is tainted with shouted slogans, misleading propaganda, and personality cult/popularity contests. Taking these grand social battles into the courtroom forces the advocates to research and think through (carefully) issues of standing, jurisdiction, cognizability of harm, causation, relevancy and reliability of evidence, and the best remedies (damages, injunctions, etc.). This is a good thing, because the policy results can be more well-informed and fine-tuned.

Tuesday, January 25, 2005

Click on the title to read the opinion, which is about plaintiff lawyers' contingency fees (not cases where fees are awarded on top of damages). I think both sides of the argument on this have merit; on the one hand, the funds are supposedly going striaght through to the attorney, so the plaintiff was not enriched by this amount; on the other hand, historically the entire award was considered income. Probably the strongest argument, though, is that Congress in 2004 modified the Internal Revenue Code to specify that these contingency fees are no longer part of the plaintiff's adjusted gross income, and the law was not retroactive (and these cases arose before the law was passed).

Two federal appellate courts issued rulings today (Tuesday) pertaining to the rights of street preachers. (Thanks to How Appealing for noting them)...

The Fourth Circuitdecision, Moore v. City of Asheville, involved a North Carolina carpenter who travels around doing street preaching; in March and April 2003, he twice received tickets/fines for violating the city's noise ordinance. He paid the fines at the time (the first was $50 and the second $100, because he was a repeat offender), and then waiting a long time before going to court to protest this infringement on his free speech rights. He waited too long; the time had elapsed for state administrative review of his fines, so he went into federal court. The Circuit Court's opinion does not address his free speech rights, but rahter the procedural question of whether a federal court can entertain a case about state or local fines when the petitioner let the time elapse so he could no longer pursue them through the normal state-level channels. He cannot (he lost). Lesson to street preachers: if you get fined or ticketed, and think you have a legal case to challenge the fine, do it right away - file an appeal with the state's administrative review system. You snooze, you loose, basically. Sorry.

The Sixth Circuit decisionis more interesting (Parks v. City of Columbus). In this case, the city of Columbus, Ohio, licensed a private entity, the Arts Council, to hold its annual Arts Festival along Civic Center Drive (it was a permit to hold a block party; they were also licensed to sell alcohol). Significantly, these permits are always "non-exclusive" - meaning the event hosts must allow other citizens to use the sidewalks, etc. Mr. Parks is a traveling street preacher/evangelist to goes to public events to hold evangelistic signs, distribute leaflets, and talk to people. He entered the area of the Arts Festival while it was underway wearing a sign with a religious message (the case record does not indicate what the sign said. An off-duty policeman, who was wearing his uniform and identified himself as an officer, had been hired by the Arts Council as a security guard, and he ordered Parks to leave the area; Parks obliged grudgingly. He later sent a letter to City official protesting what happened, and he was rebuffed - they said he had no right to be there. A federal district court agreed; the Sixth Circuit disagreed and reversed the lower court's decision, holding that there was no compelling state interest to justify the restriction of sppech in this case, that the permits were non-exclusive and therefore Parks had a right to enter the area, and that the action of the off-duty but uniformed officer constituted state action. Lesson for street preachers: city festivals might be fair game, even if someone tells you they aren't. But it depends in part on the types of licenses or permits issued in that particular city, and the reason you were asked to leave. If Parks had been disrupting the Festival itself, the outcome would have been different.

Saturday, January 22, 2005

This is a request for input or collaboration, really. One of my current research projects (hopefully a forthcoming article) is focused on the role of bifurcation in both civil and criminal trials (where phases of the trial, like guilt/liability and damages/punishment, are done separately, usually to avoid prejudice or for strategic reasons). I am mostly interested in the developing area of reverse bifurcation, where the traditional order is reversed - that is, in a civil case, the judge has the jury decide the damages first before impanleing a second jury to assess liability, or in a criminal case, where the court determines the sentence first and then has a trial to determine actual guilt. There's very little - if any - serious scholarship published on the latter phenomenon, although there is evidence that courts are experimenting with it. I'm particularly interested in interdisciplinary discussion of these procedures (economics, psychology, decision theory, game theory, etc.), but would also be interested in anecdotal evidence or experiences from practitioners.

If any of my readers are also researching in this area, or have suggestions for good material, or simply know a lot about it and have lots of well-informed opinions, I'd be much obliged. Thanks!

Friday, January 21, 2005

OK, on certain days of the week I can be a real bleeding-heart, but this storyseemed interesting to me. First, there's the "wish-more-of-our-homeless-wanted-to-go-back-to-school" thing; part of me gives the guy credit for sitting in classes, blending in, etc. instead of locking himself in the bathroom at McDonald's for hours at a time, or commandeering an entire bus stop for himself. Second, I wondered if this would have worked better if he would head for a major university campus instead, where there might be tens of thousands of people his age with whom he could blend (except that this must have been tried enough already for Universities to require ID cards for almost everything now). Third, this presents an interesting philosophical question about what "integration in society" really means. A man can be in the midst of a crowd, doing the same activities they do, attend class lectures, walk in the hallway between classes, use the gym locker room, dress like everybody else, and still be "off grid" or miles away from "belonging" there. I understand that he clearly didn't belong there, but he certainly was "integrated in society" in some meaningful sense of the word. The question is whether this would be a good thing to have for more homeless people do or an undesirable thing. He harmed no one. I'm biased, of course, because I'm an educator, but it seems that education might be a good pastime for those homeless who can handle it. No?

Francisco Serrano, 21, attended classes and slept at a Minnesota high school he used to attend.

Saturday, January 15, 2005

I understand that it would be galling to jihadists for Israelis to be a major voting block (at least 75,000, but possibly much more) in Iraq's election, but I still think it is unreasonable to exclude them when people in all the other countries get to vote. Excluding them is a way of saying, "Jews are not real Iraqis," even though it appears there were over 130,000 Iraqi Jews who fled to Israel a generation ago.

It is an inherent risk in a democratic election - especially one that allows voting from outside the borders, as most do - that some feared foreign interest could get a share in the vote and undermine the purported national interest. There was a risk (small, but still a risk) when our country was founded that "Tories" or loyalists could vote to turn America back over to its colonial rulers; or that millions of Muslim-American voters today could force a change in our foreign policy (like our support of Israel). The risk that Iraqi Israelis would engineer something crazy, like annexation, is even more remote.

But this risk carries a benefit as well, especially in an era of globalization. Healthy freedom for immigration, combined with democracy, means that there is a voice in the electorate calling for good relations with other countries. It stabilized the Middle East for several years after Anwar Sadat made a peace treaty with Israel at Camp David. It would greatly stabilize the Middle East if the country that is potentially the strongest militarily and economically (Iraq) could engage Israel seriously. In understand that Al-Qaeda would hate this. But maybe this would give them an incentive to "get out the vote" on their own, instead of threatening to sabotage the election. Our country was deeply divided in the last election, but the benefit is outstanding voter turnout, and a challenge for the losing party to convince more people to vote for them next time.

This is a bizarre angle on the Iraqi elections, which I have not seen covered in the MSM here...(this is from the Jerusalem Post). I had mixed reactions to this: I think it is great that Christians and Jews can officially vote in the Iraqi elections (a hopeful sign of progress), and that they are allowing remote voting around the world (I hadn't heard that! MSM only talks about the infeasibility of elections inside the country). I also did not know there were so many Israelis with ethnic ties to Iraq (I knew there were some, but I didn't know it was this many). But I think it is terrible that the Netherlands has a voting station and Jerusalem does not. It's hard to interpret this as anything but anti-Israel and antisemitic. Israel is the only established democracy in the Middle East, and the Iraqis living there should really have something to contribute to the establishment of a similar democracy in their original homeland. And it's fascinating to think that Israel could be a major voting block in this landmark election, if there was a voting station in Jerusalem. This is from The Post:

Israeli descendants of Iraqi Jews are being offered the possibility of voting in
the first free democratic elections in Iraq, the Independent Electoral
Commission for Iraq (ICI) has announced. The elections, which are due to take
place from January 28 to January 30 at 14 polling stations in Iraq and around
the world, are open to all ethnic Iraqis, the ICI said....Israeli turnout is
likely to be low – the closest polling station to Israel is in Amman, Jordan.

Some 130,000 Iraqi Jews immigrated to Israel after the establishment of
the state. Today, there at least 75,000 Iraqi-born Israeli citizens but the
number of eligible voters – including their children – is much higher. Iraq's
Out-of-Country Voting (OCV) committee decided not to open a polling station in
Israel, whose population of eligible voters is much greater than other countries
with polling stations, for example, the Netherlands.

Asked why Israel doesn't have a polling station, [Farid] Ayar, whose organization [ICI] is the independent body of Iraqi citizens that determined the stipulations for voter eligibility and the location of the polls, said it "is because Iraq has no relations with this state, and we don't recognize this state." . . . More details may be found on www.ccicoa.org.

Thursday, January 13, 2005

I kind of enjoy lawyer jokes, but the media tried to make it sound like this was a case of egregious overlawyering. Notice at the end of the articlethat these guys complain they've been standing outside Long Island courthouses mocking lawyers "for years" without being arrested:

"The pair said that for years they have stood outside courthouses on Long Island and mocked lawyers."

Duh. You didn't expect one of those evil, assertive lawyers to get sick of it and complain at some point? As a practitioner, I didn't enjoy standing in line outside the courthouse in the freezing New England weather any more than the rest of the people - actually probably less, because most people appearing on charges seemed to bring friends and family with them to keep them company. These protestors really must not have enough to do! Get a job or something!

If somebody finally decided he'd had enough, how was he supposed to know these guys were there that day for an actual criminal charge, instead of just standing near the line heckling the poor attorneys like usual? Sheesh. And thanks a lot for your loathsome drunk driving - lucky you didn't kill a nice family in a minivan or something. I know there are lots of lawyers who really deserve all those lawyer jokes, but we seem to have a shortage of ways to mock, scorn, abuse, and ridicule drunk drivers. (I know, they're just not funny, but are most lawyers that funny?) The two jerks (in my book) with too much time on their hands are pictured below...

When not driving around drunk, these noble citizens stand aroundand heckle innocent bystanders outside their local courthouse.Thanks, guys!!! Get a blog or something!

Wednesday, January 05, 2005

This story is interesting - and encouraging. My initial reaction would be to suggest that the defendants would be judgment-proof, but the fact that they litigated it as much as they did - and have announced plans to appeal - indicates they have something to protect. Even if the charities claim they were not mere front organizations for terrorists, in this day and age it is a distinct possibility, and legitimate charities must be more watchful about where they channel funds.